Study on the Right of Making Available; Comments and Public Roundtable, 10571-10573 [2014-04104]

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Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Notices
LIBRARY OF CONGRESS
United States Copyright Office
[Docket No. 2014–2]
Study on the Right of Making
Available; Comments and Public
Roundtable
U.S. Copyright Office, Library
of Congress.
ACTION: Request for comments and
notice of public roundtable.
AGENCY:
The United States Copyright
Office is undertaking a study at the
request of Congress to assess the state of
U.S. law recognizing and protecting
‘‘making available’’ and
‘‘communication to the public’’ rights
for copyright holders. The Office is
requesting public comments on how the
existing bundle of rights under Title 17
covers the making available and
communication to the public rights,
how foreign laws have addressed such
rights, and the feasibility and necessity
of amending U.S. law to strengthen or
clarify our law in this area. The
Copyright Office also will hold a public
roundtable to discuss these topics and
to provide a forum for interested parties
to address the issues raised by the
comments received.
DATES: Comments are due on or before
April 4, 2014. The public roundtable
will be held on May 5, 2014, from 9:00
a.m. to 5:00 p.m. EDT.
ADDRESSES: All comments should be
submitted electronically. To submit
comments, please visit http://www.
copyright.gov/docs/making_available/.
The Web site interface requires
submitters to complete a form
specifying name and organization, as
applicable, and to upload comments as
an attachment via a browser button. To
meet accessibility standards,
commenting parties must upload
comments in a single file not to exceed
six megabytes (‘‘MB’’) in one of the
following formats: The Portable
Document File (‘‘PDF’’) format that
contains searchable, accessible text (not
an image); Microsoft Word;
WordPerfect; Rich Text Format (‘‘RTF’’);
or ASCII text file format (not a scanned
document). The form and face of the
comments must include both the name
of the submitter and organization. The
Office will post all comments publicly
on the Office’s Web site exactly as they
are received, along with names and
organizations.
The public roundtable will take place
in the Copyright Office Hearing Room,
LM–408 of the Madison Building of the
Library of Congress, 101 Independence
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SUMMARY:
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Avenue SE., Washington, DC 20559.
The Copyright Office strongly prefers
that requests for participation be
submitted electronically. A
participation request form will be
posted on the Copyright Office Web site
at http://www.copyright.gov/docs/
making_available/ on or about April 7,
2014. If electronic submission of
comments or requests for participation
is not feasible, please contact the Office
at 202–707–1027 for special
instructions.
FOR FURTHER INFORMATION CONTACT:
Maria Strong, Senior Counsel for Policy
and International Affairs, by telephone
at 202–707–1027 or by email at
mstrong@loc.gov, or Kevin Amer,
Counsel for Policy and International
Affairs, by telephone at 202–707–1027
or by email at kamer@loc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The WIPO Internet Treaties—the
WIPO Copyright Treaty (‘‘WCT’’) 1 and
the WIPO Performances and
Phonograms Treaty (‘‘WPPT’’) 2—
require member states to recognize the
rights of ‘‘making available’’ and
‘‘communication to the public’’ in their
national laws. The treaties obligate
member states to give authors of works,
producers of sound recordings, and
performers whose performances are
fixed in sound recordings the exclusive
right to authorize the transmission of
their works and sound recordings,
including through interactive platforms,
such as the Internet, where the public
can choose where and when to access
them. In the specific context of
interactive, on-demand situations, WCT
Article 8 and WPPT Articles 10 and 14
provide treaty members with flexibility
in the manner in which they implement
this right.3
1 WIPO Copyright Treaty art. 8, Dec. 20, 1996, 36
I.L.M. 65 (‘‘Without prejudice to the provisions of
Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii),
14(1)(ii) and 14bis(1) of the Berne Convention,
authors of literary and artistic works shall enjoy the
exclusive right of authorizing any communication
to the public of their works, by wire or wireless
means, including the making available to the public
of their works in such a way that members of the
public may access these works from a place and at
a time individually chosen by them.’’) (text of
Agreed Statement omitted). WCT Article 8 is
entitled ‘‘Right of Communication to the Public.’’
2 WIPO Performances and Phonograms Treaty
arts. 10, 14, Dec. 20, 1996, 36 I.L.M. 76. Articles 10
and 14 provide the making available right to
performers whose performances are fixed in sound
recordings (phonograms) and to producers of sound
recordings. The separate ‘‘communication to the
public’’ provision in the WPPT (Article 15) involves
a right of remuneration, and is not the same
‘‘communication to the public’’ right found in the
Berne Convention and WCT Article 8.
3 This flexible approach is known as the
´
‘‘umbrella solution.’’ See Mihaly Ficsor, World
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10571
The United States implemented the
WIPO Internet Treaties through the
Digital Millennium Copyright Act
(‘‘DMCA’’) in 1998.4 Based on advice
received from the Copyright Office,
among many other experts, Congress did
not amend U.S. law to include explicit
references to ‘‘making available’’ and
‘‘communication to the public,’’
concluding that Title 17 already
provided those rights.5 As former
Register of Copyrights Marybeth Peters
observed:
While Section 106 of the U.S. Copyright
Act does not specifically include anything
called a ‘‘making available’’ right, the
activities involved in making a work
available are covered under the exclusive
rights of reproduction, distribution, public
display and/or public performance. . . .
Which of these rights are invoked in any
given context will depend on the nature of
the ‘‘making available’’ activity.6
Indeed, both Congress and the Executive
Branch have continued to support this
view since the enactment of the DMCA.7
Intellectual Property Organization, Guide to the
Copyright and Related Rights Treaties Administered
by WIPO and Glossary of Copyright and Related
Rights Terms 209 (2003) (WCT Article 8’s umbrella
solution allows treaty members to implement the
making available right through ‘‘a right other than
the right of communication to the public or through
the combination of different rights’’); id. at 247–48
(WPPT Articles 10 and 14 apply umbrella solution
‘‘in a fully fledged manner incorporating the neutral
description of interactive digital transmissions
directly’’).
4 Public Law 105–304, 112 Stat. 2860 (1998).
5 See H.R. Rep. No. 105–551, at 9 (1998) (‘‘The
treaties do not require any change in the substance
of copyright rights or exceptions in U.S. law.’’); see
also WIPO Copyright Treaties Implementation Act
and Online Copyright Liability Limitation Act:
Hearing on H.R. 2281 & H.R. 2180 Before the H.R.
Subcomm. on Courts and Intellectual Property of
the Comm. on the Judiciary, 105th Cong. 43 (1997)
(Register of Copyrights advised Congress that there
was ‘‘no need to alter the nature and scope of the
copyrights and exceptions, or change the
substantive balance of rights embodied in the
Copyright Act’’). More recent research into the
legislative history of U.S. law by Professor David
Nimmer and Professor Peter Menell has provided
additional textual support regarding Congress’s
views on the breadth of existing U.S. law and the
broad scope of the making available right. See
Melville B. Nimmer & David Nimmer, 2 Nimmer On
Copyright § 8.11 (2012); Peter S. Menell, In Search
of Copyright’s Lost Ark: Interpreting the Right to
Distribute in the Internet Age, 59 J. Copyright Soc’y
U.S.A. 1, 50–51 (2011).
6 Piracy of Intellectual Property on Peer-to-Peer
Networks: Hearing Before the Subcomm. on Courts,
the Internet, and Intellectual Property of the H.
Comm. on the Judiciary, 107th Cong. 114 (2002)
(letter from Marybeth Peters, Register of Copyrights,
United States Copyright Office).
7 See Internet Policy Task Force, U.S. Dep’t of
Commerce, Copyright Policy, Creativity, and
Innovation in the Digital Economy 15–16 (2013),
available at http://www.uspto.gov/news/
publications/copyrightgreenpaper.pdf (noting that
Copyright Act’s distribution right was intended to
include ‘‘the mere offering of copies to the public’’
and that contrary judicial decisions ‘‘predate . . .
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The lack of explicit references to these
rights in U.S. law, however, has led
some courts and commentators to
express uncertainty over how the
existing rights in Title 17 may apply to
various methods of making of
copyrighted works available to the
public, including in the digital
environment. Especially in the Internet
era, in any given case several of these
rights (reproduction, distribution,
public performance, and public display)
may be at issue, depending on the facts
involved.
Courts, academics, and practitioners
particularly have focused on the scope
of the distribution right under Section
106 and have debated whether it fully
encompasses the making available of a
copyrighted work without proof of an
actual distribution.8 For example, two
early Eighth and Fourth Circuit cases
discussing making available yielded
conflicting results. The Eighth Circuit in
National Car Rental System, Inc. v.
Computer Associates International, Inc.
rejected the notion that making a work
available without more violated the
distribution right.9 The principal
authority to the contrary is the Fourth
Circuit’s decision in Hotaling v. Church
of Jesus Christ of Latter-Day Saints, in
which the defendants made several
unauthorized microfiche copies of
genealogical research materials, one of
which ended up in a library
collection.10 The library did not keep
records of public use, and therefore
there was no evidence of the copy being
loaned to the public.11 The court found
that making a work available to the
public constituted distribution because
‘‘[w]hen a public library adds a work to
its collection, lists the work in its index
or catalog system, and makes the work
available to the borrowing or browsing
public, it has completed all the steps
necessary for distribution to the
public.’’ 12
A recent Tenth Circuit decision,
Diversey v. Schmidly,13 followed
Hotaling’s conclusion that making a
work available to the public constitutes
distribution under Section 106(3).
Diversey involved a similar situation to
recent academic scholarship’’ on ‘‘previously
unanalyzed legislative history’’).
8 The Section 106 distribution right is far broader
than the new distribution right afforded under the
WIPO Treaties (WCT art. 6 and WPPT arts. 8, 12).
9 991 F.2d 426, 430 (8th Cir. 1993) (‘‘[W]e cannot
conclude that an allegation that National ‘permitted
the use’ necessarily amounts to an allegation of the
actual distribution of a copy of the program.’’).
10 118 F.3d 199, 202 (4th Cir. 1997).
11 Id. at 203.
12 Id.
13 Diversey v. Schmidly, No. 13–2058, 2013 U.S.
App. LEXIS 25506, at *12–13 (10th Cir. Dec. 23,
2013).
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Hotaling and addressed a library
lending an unauthorized copy of a work
to the public. The Tenth Circuit noted,
however, that there has not been
consensus on Hotaling’s applicability to
Internet file-sharing cases, and the court
avoided extending its holding to those
digital situations.14
Other courts have addressed the scope
of the distribution right in the online
context and have reached similarly
conflicting results. The Ninth Circuit in
A&M Records v. Napster, Inc.
concluded that distribution
encompasses ‘‘making available,’’
observing that ‘‘Napster users who
upload file names to the search index
for others to copy violate plaintiffs’
distribution rights.’’ 15 Other courts have
disagreed and required actual
distribution. Thus, the court in LondonSire Records, Inc. v. Doe 1, which
considered infringement of the
distribution right through peer-to-peer
file sharing, cast doubt on Hotaling,
asserting that ‘‘[m]erely because the
defendant has ‘completed all the steps
necessary for distribution’ does not
necessarily mean that a distribution has
actually occurred.’’ 16 Notably, however,
while the London-Sire court required
actual distribution, it did not require
direct evidence of dissemination over
peer-to-peer networks, holding instead
that a reasonable fact-finder may infer
that distribution actually took place
where the defendant has completed all
necessary steps for a public
distribution.17 Other courts have also
relied on the language of Section 106(3)
to require actual distribution in order to
find a violation of that right.18
14 Id.
at *13–14 n.7.
Records, Inc. v. Napster, Inc., 239 F.3d
1004, 1014 (9th Cir. 2001); see also Universal City
Studios Prods. LLLP v. Bigwood, 441 F. Supp. 2d
185, 190 (D. Me. 2006) (‘‘[B]y using KaZaA to make
copies of the Motion Pictures available to thousands
of people over the internet, Defendant violated
Plaintiffs’ exclusive right to distribute the Motion
Pictures.’’); Warner Bros. Records, Inc. v. Payne,
2006 U.S. Dist. LEXIS 65765, at *8 (W.D. Tex. 2006)
(‘‘Listing unauthorized copies of sound recordings
using an online file-sharing system constitutes an
offer to distribute those works, thereby violating a
copyright owner’s exclusive right of distribution.’’).
16 542 F. Supp. 2d 153, 168 (D. Mass. 2008)
(quoting Hotaling, 118 F.3d at 203).
17 Id. at 169.
18 See Capitol Records, Inc. v. Thomas, 579 F.
Supp. 2d 1210, 1218 (D. Minn. 2008) (concluding
it was bound by the holding in National Car and
stating that although ‘‘the Copyright Act does not
offer a uniform definition of ‘distribution’ . . .
Congress’s choice to not include offers to do the
enumerated acts or the making available of the work
indicates its intent that an actual distribution or
dissemination is required in § 106(3)’’); Atlantic
Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983
(D. Ariz. 2008) (‘‘The statute provides copyright
holders with the exclusive right to distribute
‘copies’ of their works to the public ‘by sale or other
transfer of ownership, or by rental, lease, or
15 A&M
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In sum, while Congress and the
Copyright Office have agreed that U.S.
law covers the making available right of
the WCT, courts have encountered
difficulties in evaluating the scope of
this interactive right, and the level of
evidence needed to establish liability, in
the specific cases before them.19
In a letter dated December 19, 2013,
Representative Melvin L. Watt requested
that the Copyright Office ‘‘assess the
state of U.S. law recognizing and
protecting ‘making available’ and
‘communicating to the public’ rights for
copyright holders. . . . In light of the
rapidly changing technology and
inconsistency in the various court
discussions of these rights . . . it is
important that the Copyright Office
study the current state of the law in the
United States.’’ Specifically,
Representative Watt asked the Office to
review and assess: ‘‘(1) How the existing
bundle of exclusive rights under Title
17 covers the making available and
communication to the public rights in
the context of digital on-demand
transmissions such as peer-to-peer
networks, streaming services, and music
downloads, as well as more broadly in
the digital environment; (2) how foreign
laws have interpreted and implemented
the relevant provisions of the WIPO
Internet Treaties; and (3) the feasibility
and necessity of amending U.S. law to
strengthen or clarify our law in this
area.’’
On January 14, 2014, the House
Judiciary Committee’s Subcommittee on
Intellectual Property, Competition, and
the Internet held a hearing during which
two witnesses were asked to address the
issue of the making available right.20
These witnesses expressed a variety of
views on whether current U.S. copyright
law provides sufficient clarity on this
issue and whether adding an explicit
making available right to Title 17 would
lending.’ Unless a copy of the work changes hands
in one of the designated ways, a ‘distribution’ under
§ 106(3) has not taken place. Merely making an
unauthorized copy of a copyrighted work available
to the public does not violate a copyright holder’s
exclusive right of distribution.’’).
19 As noted, in addition to the distribution right,
the right of making available also implicates the
rights of reproduction, public performance, and
public display. The Supreme Court recently grated
certiorari in a case involving the scope of the public
performance right in the context of online streaming
of broadcast television programs. See Am. Broad.
Cos., Inc. v. Aereo, Inc., 82 U.S.L.W. 3241 (U.S. Jan.
10, 2014) (No. 13–461). Oral argument is scheduled
for April 22, 2014.
20 See The Scope of Copyright Protection: Hearing
Before the Subcomm. on Intellectual Property,
Courts, & the Internet of the H. Comm. on the
Judiciary, 113th Cong. (2014), available at http://
judiciary.house.gov/index.cfm/2014/1/the-scope-ofcopyright-protection.
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Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Notices
be beneficial.21 They agreed, however,
that current law is properly construed to
provide such protection.22
II. Request for Comment
In light of uncertainty among some
courts regarding the nature and scope of
the making available and
communication to the public rights, and
to facilitate the study requested by
Representative Watt, the Copyright
Office seeks public comments on the
three main issues listed above. The
Office poses additional questions on
these three topics below, and requests
that commenters identify the questions
they are answering in their responses.
1. Existing Exclusive Rights Under Title
17
a. How does the existing bundle of
exclusive rights currently in Title 17
cover the making available and
communication to the public rights in
the context of digital on-demand
transmissions such as peer-to-peer
networks, streaming services, and
downloads of copyrighted content, as
well as more broadly in the digital
environment?
b. Do judicial opinions interpreting
Section 106 and the making available
right in the framework of tangible works
provide sufficient guidance for the
digital realm?
2. Foreign Implementation and
Interpretation of the WIPO Internet
Treaties
a. How have foreign laws
implemented the making available right
(as found in WCT Article 8 and WPPT
Articles 10 and 14)? Has such
implementation provided more or less
legal clarity in those countries in the
context of digital distribution of
copyrighted works?
b. How have courts in foreign
countries evaluated their national
implementation of the making available
right in these two WIPO treaties? Are
there any specific case results or related
legislative components that might
present attractive options for possible
congressional consideration?
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3. Possible Changes to U.S. Law
a. If Congress continues to determine
that the Section 106 exclusive rights
21 See Statement of David Nimmer, Professor,
UCLA School of Law, The Scope of Copyright
Protection, supra note 20 (‘‘Nimmer Statement’’);
Statement of Glynn S. Lunney, Jr., Professor, Tulane
University School of Law, The Scope of Copyright
Protection, supra note 20 (‘‘Lunney Statement’’).
These witness statements are available at http://
docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=101642.
22 See Nimmer Statement at 2–3; Lunney
Statement at 1–4.
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provide a making available right in the
digital environment, is there a need for
Congress to take any additional steps to
clarify the law to avoid potential
conflicting outcomes in future
litigation? Why or why not?
b. If Congress concludes that Section
106 requires further clarification of the
scope of the making available right in
the digital environment, how should the
law be amended to incorporate this right
more explicitly?
c. Would adding an explicit ‘‘making
available’’ right significantly broaden
the scope of copyright protection
beyond what it is today? Why or why
not? Would existing rights in Section
106 also have to be recalibrated?
d. Would any amendment to the
‘‘making available’’ right in Title 17
raise any First Amendment concerns? If
so, how can any potential issues in this
area be avoided?
e. If an explicit right is added, what,
if any, corresponding exceptions or
limitations should be considered for
addition to the copyright law?
If there are any pertinent issues not
discussed above, the Office encourages
interested parties to raise those matters
in their comments.
III. Public Roundtable
On May 5, 2014, the Copyright Office
will hold a public roundtable to hear
stakeholder views and to initiate
discussion of the three topics identified
above. The agenda and the process for
submitting requests to participate in the
public roundtable will be available on
the Copyright Office Web site on or
about April 7, 2014.
IV. Requests To Participate
Requests to participate in the public
roundtable should be submitted online
at http://www.copyright.gov/docs/
making_available/. Nonparticipants
who wish to attend and observe the
discussion should note that seating is
limited and, for nonparticipants, will be
available on a first come, first served
basis.
Dated: February 20, 2014.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2014–04104 Filed 2–24–14; 8:45 am]
BILLING CODE 1410–30–P
PO 00000
10573
MILITARY COMPENSATION AND
RETIREMENT MODERNIZATION
COMMISSION
Cancellation of a Meeting of the
Military Compensation and Retirement
Modernization Commission
Military Compensation and
Retirement Modernization Commission.
AGENCY:
Notice of cancellation of public
meetings and town hall meeting.
ACTION:
This notice cancels the
hearings and town hall that were to be
held on Tuesday, February 25, 2014.
SUMMARY:
The public hearings and town
hall originally scheduled for Tuesday,
February 25, 2014, are cancelled.
DATES:
The hearings and town hall
were to be held Tuesday, February 25,
2014 at the Embassy Suites Fayetteville
Fort Bragg, 4760 Lake Valley Drive,
Fayetteville, North Carolina 28303.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Christopher Nuneviller, Associate
Director, Military Compensation and
Retirement Modernization Commission,
P.O. Box 13170, Arlington VA 22209,
telephone 703–692–2080, fax 703–697–
8330, email christopher.nuneviller@
mcrmc.gov.
A notice
of public hearings and town hall
meeting that appeared in the Federal
Register on February 18, 2014 (79 FR
9285) announced that the Military
Compensation and Retirement
Modernization Commission
(Commission) was to hold public
hearings and a town hall meeting on
Tuesday, February 25, 2014, to seek the
views of service members, retirees, their
beneficiaries and other interested
parties regarding pay, retirement, health
benefits and quality of life programs of
the Uniformed Services. The
Commission was to also hear from
senior commanders of local military
commands and their senior enlisted
advisors, unit commanders and their
family support groups, local medical
and education community
representatives, and other quality of life
organizations.
The public hearings and town hall
meeting will be rescheduled for a later
date.
SUPPLEMENTARY INFORMATION:
Christopher Nuneviller,
Associate Director, Administration and
Operations.
[FR Doc. 2014–04126 Filed 2–24–14; 8:45 am]
BILLING CODE P
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[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Notices]
[Pages 10571-10573]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04104]
[[Page 10571]]
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LIBRARY OF CONGRESS
United States Copyright Office
[Docket No. 2014-2]
Study on the Right of Making Available; Comments and Public
Roundtable
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Request for comments and notice of public roundtable.
-----------------------------------------------------------------------
SUMMARY: The United States Copyright Office is undertaking a study at
the request of Congress to assess the state of U.S. law recognizing and
protecting ``making available'' and ``communication to the public''
rights for copyright holders. The Office is requesting public comments
on how the existing bundle of rights under Title 17 covers the making
available and communication to the public rights, how foreign laws have
addressed such rights, and the feasibility and necessity of amending
U.S. law to strengthen or clarify our law in this area. The Copyright
Office also will hold a public roundtable to discuss these topics and
to provide a forum for interested parties to address the issues raised
by the comments received.
DATES: Comments are due on or before April 4, 2014. The public
roundtable will be held on May 5, 2014, from 9:00 a.m. to 5:00 p.m.
EDT.
ADDRESSES: All comments should be submitted electronically. To submit
comments, please visit http://www.copyright.gov/docs/making_available/
. The Web site interface requires submitters to complete a form
specifying name and organization, as applicable, and to upload comments
as an attachment via a browser button. To meet accessibility standards,
commenting parties must upload comments in a single file not to exceed
six megabytes (``MB'') in one of the following formats: The Portable
Document File (``PDF'') format that contains searchable, accessible
text (not an image); Microsoft Word; WordPerfect; Rich Text Format
(``RTF''); or ASCII text file format (not a scanned document). The form
and face of the comments must include both the name of the submitter
and organization. The Office will post all comments publicly on the
Office's Web site exactly as they are received, along with names and
organizations.
The public roundtable will take place in the Copyright Office
Hearing Room, LM-408 of the Madison Building of the Library of
Congress, 101 Independence Avenue SE., Washington, DC 20559. The
Copyright Office strongly prefers that requests for participation be
submitted electronically. A participation request form will be posted
on the Copyright Office Web site at http://www.copyright.gov/docs/making_available/ on or about April 7, 2014. If electronic submission
of comments or requests for participation is not feasible, please
contact the Office at 202-707-1027 for special instructions.
FOR FURTHER INFORMATION CONTACT: Maria Strong, Senior Counsel for
Policy and International Affairs, by telephone at 202-707-1027 or by
email at mstrong@loc.gov, or Kevin Amer, Counsel for Policy and
International Affairs, by telephone at 202-707-1027 or by email at
kamer@loc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The WIPO Internet Treaties--the WIPO Copyright Treaty (``WCT'') \1\
and the WIPO Performances and Phonograms Treaty (``WPPT'') \2\--require
member states to recognize the rights of ``making available'' and
``communication to the public'' in their national laws. The treaties
obligate member states to give authors of works, producers of sound
recordings, and performers whose performances are fixed in sound
recordings the exclusive right to authorize the transmission of their
works and sound recordings, including through interactive platforms,
such as the Internet, where the public can choose where and when to
access them. In the specific context of interactive, on-demand
situations, WCT Article 8 and WPPT Articles 10 and 14 provide treaty
members with flexibility in the manner in which they implement this
right.\3\
---------------------------------------------------------------------------
\1\ WIPO Copyright Treaty art. 8, Dec. 20, 1996, 36 I.L.M. 65
(``Without prejudice to the provisions of Articles 11(1)(ii),
11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the
Berne Convention, authors of literary and artistic works shall enjoy
the exclusive right of authorizing any communication to the public
of their works, by wire or wireless means, including the making
available to the public of their works in such a way that members of
the public may access these works from a place and at a time
individually chosen by them.'') (text of Agreed Statement omitted).
WCT Article 8 is entitled ``Right of Communication to the Public.''
\2\ WIPO Performances and Phonograms Treaty arts. 10, 14, Dec.
20, 1996, 36 I.L.M. 76. Articles 10 and 14 provide the making
available right to performers whose performances are fixed in sound
recordings (phonograms) and to producers of sound recordings. The
separate ``communication to the public'' provision in the WPPT
(Article 15) involves a right of remuneration, and is not the same
``communication to the public'' right found in the Berne Convention
and WCT Article 8.
\3\ This flexible approach is known as the ``umbrella
solution.'' See Mih[aacute]ly Ficsor, World Intellectual Property
Organization, Guide to the Copyright and Related Rights Treaties
Administered by WIPO and Glossary of Copyright and Related Rights
Terms 209 (2003) (WCT Article 8's umbrella solution allows treaty
members to implement the making available right through ``a right
other than the right of communication to the public or through the
combination of different rights''); id. at 247-48 (WPPT Articles 10
and 14 apply umbrella solution ``in a fully fledged manner
incorporating the neutral description of interactive digital
transmissions directly'').
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The United States implemented the WIPO Internet Treaties through
the Digital Millennium Copyright Act (``DMCA'') in 1998.\4\ Based on
advice received from the Copyright Office, among many other experts,
Congress did not amend U.S. law to include explicit references to
``making available'' and ``communication to the public,'' concluding
that Title 17 already provided those rights.\5\ As former Register of
Copyrights Marybeth Peters observed:
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\4\ Public Law 105-304, 112 Stat. 2860 (1998).
\5\ See H.R. Rep. No. 105-551, at 9 (1998) (``The treaties do
not require any change in the substance of copyright rights or
exceptions in U.S. law.''); see also WIPO Copyright Treaties
Implementation Act and Online Copyright Liability Limitation Act:
Hearing on H.R. 2281 & H.R. 2180 Before the H.R. Subcomm. on Courts
and Intellectual Property of the Comm. on the Judiciary, 105th Cong.
43 (1997) (Register of Copyrights advised Congress that there was
``no need to alter the nature and scope of the copyrights and
exceptions, or change the substantive balance of rights embodied in
the Copyright Act''). More recent research into the legislative
history of U.S. law by Professor David Nimmer and Professor Peter
Menell has provided additional textual support regarding Congress's
views on the breadth of existing U.S. law and the broad scope of the
making available right. See Melville B. Nimmer & David Nimmer, 2
Nimmer On Copyright Sec. 8.11 (2012); Peter S. Menell, In Search of
Copyright's Lost Ark: Interpreting the Right to Distribute in the
Internet Age, 59 J. Copyright Soc'y U.S.A. 1, 50-51 (2011).
While Section 106 of the U.S. Copyright Act does not
specifically include anything called a ``making available'' right,
the activities involved in making a work available are covered under
the exclusive rights of reproduction, distribution, public display
and/or public performance. . . . Which of these rights are invoked
in any given context will depend on the nature of the ``making
available'' activity.\6\
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\6\ Piracy of Intellectual Property on Peer-to-Peer Networks:
Hearing Before the Subcomm. on Courts, the Internet, and
Intellectual Property of the H. Comm. on the Judiciary, 107th Cong.
114 (2002) (letter from Marybeth Peters, Register of Copyrights,
United States Copyright Office).
Indeed, both Congress and the Executive Branch have continued to
support this view since the enactment of the DMCA.\7\
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\7\ See Internet Policy Task Force, U.S. Dep't of Commerce,
Copyright Policy, Creativity, and Innovation in the Digital Economy
15-16 (2013), available at http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf (noting that Copyright Act's distribution
right was intended to include ``the mere offering of copies to the
public'' and that contrary judicial decisions ``predate . . . recent
academic scholarship'' on ``previously unanalyzed legislative
history'').
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[[Page 10572]]
The lack of explicit references to these rights in U.S. law,
however, has led some courts and commentators to express uncertainty
over how the existing rights in Title 17 may apply to various methods
of making of copyrighted works available to the public, including in
the digital environment. Especially in the Internet era, in any given
case several of these rights (reproduction, distribution, public
performance, and public display) may be at issue, depending on the
facts involved.
Courts, academics, and practitioners particularly have focused on
the scope of the distribution right under Section 106 and have debated
whether it fully encompasses the making available of a copyrighted work
without proof of an actual distribution.\8\ For example, two early
Eighth and Fourth Circuit cases discussing making available yielded
conflicting results. The Eighth Circuit in National Car Rental System,
Inc. v. Computer Associates International, Inc. rejected the notion
that making a work available without more violated the distribution
right.\9\ The principal authority to the contrary is the Fourth
Circuit's decision in Hotaling v. Church of Jesus Christ of Latter-Day
Saints, in which the defendants made several unauthorized microfiche
copies of genealogical research materials, one of which ended up in a
library collection.\10\ The library did not keep records of public use,
and therefore there was no evidence of the copy being loaned to the
public.\11\ The court found that making a work available to the public
constituted distribution because ``[w]hen a public library adds a work
to its collection, lists the work in its index or catalog system, and
makes the work available to the borrowing or browsing public, it has
completed all the steps necessary for distribution to the public.''
\12\
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\8\ The Section 106 distribution right is far broader than the
new distribution right afforded under the WIPO Treaties (WCT art. 6
and WPPT arts. 8, 12).
\9\ 991 F.2d 426, 430 (8th Cir. 1993) (``[W]e cannot conclude
that an allegation that National `permitted the use' necessarily
amounts to an allegation of the actual distribution of a copy of the
program.'').
\10\ 118 F.3d 199, 202 (4th Cir. 1997).
\11\ Id. at 203.
\12\ Id.
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A recent Tenth Circuit decision, Diversey v. Schmidly,\13\ followed
Hotaling's conclusion that making a work available to the public
constitutes distribution under Section 106(3). Diversey involved a
similar situation to Hotaling and addressed a library lending an
unauthorized copy of a work to the public. The Tenth Circuit noted,
however, that there has not been consensus on Hotaling's applicability
to Internet file-sharing cases, and the court avoided extending its
holding to those digital situations.\14\
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\13\ Diversey v. Schmidly, No. 13-2058, 2013 U.S. App. LEXIS
25506, at *12-13 (10th Cir. Dec. 23, 2013).
\14\ Id. at *13-14 n.7.
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Other courts have addressed the scope of the distribution right in
the online context and have reached similarly conflicting results. The
Ninth Circuit in A&M Records v. Napster, Inc. concluded that
distribution encompasses ``making available,'' observing that ``Napster
users who upload file names to the search index for others to copy
violate plaintiffs' distribution rights.'' \15\ Other courts have
disagreed and required actual distribution. Thus, the court in London-
Sire Records, Inc. v. Doe 1, which considered infringement of the
distribution right through peer-to-peer file sharing, cast doubt on
Hotaling, asserting that ``[m]erely because the defendant has
`completed all the steps necessary for distribution' does not
necessarily mean that a distribution has actually occurred.'' \16\
Notably, however, while the London-Sire court required actual
distribution, it did not require direct evidence of dissemination over
peer-to-peer networks, holding instead that a reasonable fact-finder
may infer that distribution actually took place where the defendant has
completed all necessary steps for a public distribution.\17\ Other
courts have also relied on the language of Section 106(3) to require
actual distribution in order to find a violation of that right.\18\
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\15\ A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014
(9th Cir. 2001); see also Universal City Studios Prods. LLLP v.
Bigwood, 441 F. Supp. 2d 185, 190 (D. Me. 2006) (``[B]y using KaZaA
to make copies of the Motion Pictures available to thousands of
people over the internet, Defendant violated Plaintiffs' exclusive
right to distribute the Motion Pictures.''); Warner Bros. Records,
Inc. v. Payne, 2006 U.S. Dist. LEXIS 65765, at *8 (W.D. Tex. 2006)
(``Listing unauthorized copies of sound recordings using an online
file-sharing system constitutes an offer to distribute those works,
thereby violating a copyright owner's exclusive right of
distribution.'').
\16\ 542 F. Supp. 2d 153, 168 (D. Mass. 2008) (quoting Hotaling,
118 F.3d at 203).
\17\ Id. at 169.
\18\ See Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210,
1218 (D. Minn. 2008) (concluding it was bound by the holding in
National Car and stating that although ``the Copyright Act does not
offer a uniform definition of `distribution' . . . Congress's choice
to not include offers to do the enumerated acts or the making
available of the work indicates its intent that an actual
distribution or dissemination is required in Sec. 106(3)'');
Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D.
Ariz. 2008) (``The statute provides copyright holders with the
exclusive right to distribute `copies' of their works to the public
`by sale or other transfer of ownership, or by rental, lease, or
lending.' Unless a copy of the work changes hands in one of the
designated ways, a `distribution' under Sec. 106(3) has not taken
place. Merely making an unauthorized copy of a copyrighted work
available to the public does not violate a copyright holder's
exclusive right of distribution.'').
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In sum, while Congress and the Copyright Office have agreed that
U.S. law covers the making available right of the WCT, courts have
encountered difficulties in evaluating the scope of this interactive
right, and the level of evidence needed to establish liability, in the
specific cases before them.\19\
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\19\ As noted, in addition to the distribution right, the right
of making available also implicates the rights of reproduction,
public performance, and public display. The Supreme Court recently
grated certiorari in a case involving the scope of the public
performance right in the context of online streaming of broadcast
television programs. See Am. Broad. Cos., Inc. v. Aereo, Inc., 82
U.S.L.W. 3241 (U.S. Jan. 10, 2014) (No. 13-461). Oral argument is
scheduled for April 22, 2014.
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In a letter dated December 19, 2013, Representative Melvin L. Watt
requested that the Copyright Office ``assess the state of U.S. law
recognizing and protecting `making available' and `communicating to the
public' rights for copyright holders. . . . In light of the rapidly
changing technology and inconsistency in the various court discussions
of these rights . . . it is important that the Copyright Office study
the current state of the law in the United States.'' Specifically,
Representative Watt asked the Office to review and assess: ``(1) How
the existing bundle of exclusive rights under Title 17 covers the
making available and communication to the public rights in the context
of digital on-demand transmissions such as peer-to-peer networks,
streaming services, and music downloads, as well as more broadly in the
digital environment; (2) how foreign laws have interpreted and
implemented the relevant provisions of the WIPO Internet Treaties; and
(3) the feasibility and necessity of amending U.S. law to strengthen or
clarify our law in this area.''
On January 14, 2014, the House Judiciary Committee's Subcommittee
on Intellectual Property, Competition, and the Internet held a hearing
during which two witnesses were asked to address the issue of the
making available right.\20\ These witnesses expressed a variety of
views on whether current U.S. copyright law provides sufficient clarity
on this issue and whether adding an explicit making available right to
Title 17 would
[[Page 10573]]
be beneficial.\21\ They agreed, however, that current law is properly
construed to provide such protection.\22\
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\20\ See The Scope of Copyright Protection: Hearing Before the
Subcomm. on Intellectual Property, Courts, & the Internet of the H.
Comm. on the Judiciary, 113th Cong. (2014), available at http://judiciary.house.gov/index.cfm/2014/1/the-scope-of-copyright-protection.
\21\ See Statement of David Nimmer, Professor, UCLA School of
Law, The Scope of Copyright Protection, supra note 20 (``Nimmer
Statement''); Statement of Glynn S. Lunney, Jr., Professor, Tulane
University School of Law, The Scope of Copyright Protection, supra
note 20 (``Lunney Statement''). These witness statements are
available at http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=101642.
\22\ See Nimmer Statement at 2-3; Lunney Statement at 1-4.
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II. Request for Comment
In light of uncertainty among some courts regarding the nature and
scope of the making available and communication to the public rights,
and to facilitate the study requested by Representative Watt, the
Copyright Office seeks public comments on the three main issues listed
above. The Office poses additional questions on these three topics
below, and requests that commenters identify the questions they are
answering in their responses.
1. Existing Exclusive Rights Under Title 17
a. How does the existing bundle of exclusive rights currently in
Title 17 cover the making available and communication to the public
rights in the context of digital on-demand transmissions such as peer-
to-peer networks, streaming services, and downloads of copyrighted
content, as well as more broadly in the digital environment?
b. Do judicial opinions interpreting Section 106 and the making
available right in the framework of tangible works provide sufficient
guidance for the digital realm?
2. Foreign Implementation and Interpretation of the WIPO Internet
Treaties
a. How have foreign laws implemented the making available right (as
found in WCT Article 8 and WPPT Articles 10 and 14)? Has such
implementation provided more or less legal clarity in those countries
in the context of digital distribution of copyrighted works?
b. How have courts in foreign countries evaluated their national
implementation of the making available right in these two WIPO
treaties? Are there any specific case results or related legislative
components that might present attractive options for possible
congressional consideration?
3. Possible Changes to U.S. Law
a. If Congress continues to determine that the Section 106
exclusive rights provide a making available right in the digital
environment, is there a need for Congress to take any additional steps
to clarify the law to avoid potential conflicting outcomes in future
litigation? Why or why not?
b. If Congress concludes that Section 106 requires further
clarification of the scope of the making available right in the digital
environment, how should the law be amended to incorporate this right
more explicitly?
c. Would adding an explicit ``making available'' right
significantly broaden the scope of copyright protection beyond what it
is today? Why or why not? Would existing rights in Section 106 also
have to be recalibrated?
d. Would any amendment to the ``making available'' right in Title
17 raise any First Amendment concerns? If so, how can any potential
issues in this area be avoided?
e. If an explicit right is added, what, if any, corresponding
exceptions or limitations should be considered for addition to the
copyright law?
If there are any pertinent issues not discussed above, the Office
encourages interested parties to raise those matters in their comments.
III. Public Roundtable
On May 5, 2014, the Copyright Office will hold a public roundtable
to hear stakeholder views and to initiate discussion of the three
topics identified above. The agenda and the process for submitting
requests to participate in the public roundtable will be available on
the Copyright Office Web site on or about April 7, 2014.
IV. Requests To Participate
Requests to participate in the public roundtable should be
submitted online at http://www.copyright.gov/docs/making_available/.
Nonparticipants who wish to attend and observe the discussion should
note that seating is limited and, for nonparticipants, will be
available on a first come, first served basis.
Dated: February 20, 2014.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2014-04104 Filed 2-24-14; 8:45 am]
BILLING CODE 1410-30-P